Oral Argument Previews

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Tuesday, Sept. 11, 2007

Tammy A. Greer-Burger v. Laszlo Temesi, Case no. 2006-1616
8 th District Court of Appeals (Cuyahoga County)

Philip J. Charvat v. Thomas N. Ryan, D.D.S., et al., Case nos. 2006-1647 and 2006-1855
10th District Court of Appeals (Franklin County)

Douglas J. Wilson v. Jennifer R. Wilson, Case no. 2006-1814
9th District Court of Appeals (Wayne County)

International Brotherhood of Electrical Workers, Local Union No. 8 v. Vaughn Industries, Inc., Case no. 2006-1868
6th District Court of Appeals (Wood County)


Is Employer’s Suit Seeking Punitive Damages ‘Retaliation Per Se’ for Harassment Claim?

Tammy A. Greer-Burger v. Laszlo Temesi, Case no. 2006-1616
8 th District Court of Appeals (Cuyahoga County)

ISSUE: When an employee has sued her employer for sexual harassment and the case has been decided in favor of the employer, does a court's application of the “anti-retaliation” provision of Ohio's civil rights law to sanction the employer for later seeking to recover punitive damages against the employee for alleged malicious prosecution and abuse of process violate the employer's constitutional right to seek redress of grievances through the courts?

BACKGROUND: In 1998, Tammy Greer (now Tammy Greer-Burger) filed a sexual harassment suit alleging that her former employer, Laszlo Temesi, had engaged in a pattern of inappropriate

actions and sexual comments directed toward Greer. A jury returned judgment in favor of Temesi. Five months later, in May 2000, Temesi filed a civil suit against Greer seeking to recover his costs of defending against her harassment suit and also seeking punitive damages for alleged malicious prosecution, abuse of process and intentional infliction of emotional distress.

Greer filed a complaint with the Ohio Civil Rights Commission (OCRC), charging that Temesi's lawsuit was an unlawful act of retaliation against her for engaging in the protected activity of pursuing a sexual harassment claim. An administrative law judge found probable cause that Temesi's suit was retaliation prohibited under R.C. 4112.02(I), and the commission subsequently issued an order enjoining Temesi from further prosecution of his suit and ordering him to pay Greer $16,000 to cover her legal fees for defending against his retaliatory claims.

Temesi appealed the OCRC order in the Cuyahoga County Court of Common Pleas, which affirmed the commission's ruling. He subsequently appealed to the 8th District Court of Appeals, which affirmed the judgment of the trial court.

Temesi now asks the Supreme Court to reverse the OCRC order and the decisions of the trial and appellate courts. His attorneys argue that, in holding that the anti-retaliation provision of the civil rights law bars him from suing Greer regardless of whether or not his claims of malicious prosecution and other damages are well-founded, the rulings of the OCRC and lower courts have deprived Temesi and other employers of their fundamental constitutional right to seek redress of grievances through the courts. Under the OCRC and lower court rulings, they assert, employees are given free rein to engage in any kind of malicious prosecution, libel and defamation against their employers with complete immunity from civil consequences, as long as they couch their false claims as complaints of alleged workplace discrimination.

Attorneys for the Ohio Civil Rights Commission, supported by an amicus curiae (friend of the court) brief filed by the Ohio Employment Lawyers Association, argue that few if any employees would ever risk filing a civil rights suit against their current or former employer without the protection of the anti-retaliation provision of R.C. 4112.02(I). They point out that sexual harassment and other workplace discrimination claims are often difficult to prove, and many meritorious cases are nevertheless unsuccessful. If the Court reverses the OCRC ruling in this case, they contend, employers who win discrimination cases will have a green light to intimidate other employees from filing similar claims in the future by filing a punitive damage lawsuit against the unsuccessful complainant.

Contacts
Elise Porter, 614.466.8980, for the Ohio Civil Rights Commission.

William L. Summers, 216.591.0727, for Laszlo Temesi.

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Does ‘Knowing’ Violation of Consumer Sales Act Require Prior Knowledge That Action Is Illegal?

Philip J. Charvat v. Thomas N. Ryan, D.D.S., et al., Case nos. 2006-1647 and 2006-1855
10th District Court of Appeals (Franklin County)

ISSUE: In order to recover treble damages and attorney fees from a telemarketer for a “knowing” or “willful” violation of the federal Telephone Consumer Protection Act and Ohio Consumer Sales Practices Act, must a consumer prove that the party making a prohibited call was aware at the time that its action was unlawful?

BACKGROUND: After receiving an automated telemarketing phone call at his residence, Philip Charvat of Columbus filed suit against a local dentist, Dr. Thomas Ryan, who placed the call as part of a marketing effort for his practice. Charvat's complaint asserted claims against Ryan and co-defendants for multiple violations of the federal Telephone Consumer Protection Act (TCPA) and the Ohio Consumer Sales Practices Act (CSPA). Charvat asked the trial court to award him $1,500 – three times the statutory penalty of $500 for each violation of the TCPA – under a provision of that law that authorizes treble damages for a “knowing” or “willful” violation of the statute. He also asked for an award to cover his attorney fees and other costs of pursuing his CSPA claims under a provision in the CSPA that authorizes such an award if a violation is shown to be “knowing.”

The trial court entered summary judgment granting Charvat statutory awards of $500 each for two violations of the TCPA and one award of $200 for a single violation of the CSPA, but denied his claims alleging other violations arising from the phone call and rejected both his petition for treble damages and his request for an award of attorney fees and costs. In its judgment order, the trial court held that Charvat was not entitled to treble damages under the TCPA or an award of attorney fees under the CSPA because he had not shown that Ryan knew at the time the call was placed that he was acting unlawfully. Charvat appealed, and the 10th District Court of Appeals affirmed the trial court's holdings on the issues of treble damages and attorney fees. The Supreme Court has agreed to hear Charvat's appeal.

Attorneys for Charvat argue that the trial court based its rulings on incorrect definitions of the terms “knowing” and “willful.” They point to decisions of the U.S. and Ohio Supreme courts that they say have specifically held that a “willful” and “knowing” violation is established if it is shown that a violator voluntarily and intentionally committed an act or practice that violated the law, without any requirement of proof that the violator knew his action was unlawful or intended to violate the law. Because the trial court's judgment on this point was clearly wrong as a matter of law, they assert, the 10th District erred in not reversing the lower court and granting Charvat's claims for treble damages and attorney fees. [NOTE: The Ohio Attorney General's office has entered an amicus curiae (friend of the court) brief in support of Charvat's position, and has been granted permission to participate in oral argument before the Court.]

Attorneys for Ryan respond that trial courts have discretion under the TCPA and CSPA to award or deny treble damages and attorney fees based on the totality of their findings in a case. They point out that Charvat could have placed his phone on the national “Do Not Call” registry, which would automatically exclude him from commercial telemarketing lists. They argue that the 10th District properly deferred to the trial judge's conclusion that, under the circumstances of this case, Charvat should not receive multiple awards or enhanced damages based on his receipt of a single phone call that he could easily have avoided receiving.

Contacts
John W. Ferron, 614.228.5225, for Philip Charvat.

Matthew T. Green, 614.462.1058, for Dr. Thomas Ryan.

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Is Divorce Decree ‘Final’ Order When It Includes Provision for Future Domestic Relations Order?

Douglas J. Wilson v. Jennifer R. Wilson, Case no. 2006-1814
9th District Court of Appeals (Wayne County)

ISSUE: Is a divorce decree a “final order” subject to immediate review by a court of appeals when the decree includes a provision that a Qualified Domestic Relations Order be issued in the future if and when one of the divorcing spouses becomes vested in a currently unvested pension?

BACKGROUND: Douglas and Jennifer Wilson of Wayne County sued each other for divorce in 2004. In its decree granting the divorce, the trial court included a detailed division of all of the couple's marital assets.

As part of that property division, the decree awarded Jennifer one-half of the value of any pension benefits Douglas might receive from a Teamsters pension fund in which he was not currently vested. Douglas had participated in the pension plan for three years during the marriage, but was no longer participating in it at the time of the divorce and would only become vested if he later returned to work an additional two years in a job covered by the plan. The trial court decree specified that, if and when Douglas became vested in a Teamsters pension, the division of his benefit would be accomplished through the issuance of a Qualified Domestic Relations Order (QDRO--a specialized legal instrument authorized by federal law that allows a pension fund to distribute pension proceeds to a participant's former spouse, and exempts such distributions from legal penalties and tax consequences that could otherwise be applicable).

Douglas attempted to appeal provisions of the divorce decree to the 9th District Court of Appeals. The 9th District dismissed his appeal, ruling that the decree was not a “final, appealable order” over which it could accept jurisdiction because the trial court's directive regarding a QDRO to divide the Teamsters pension remained pending. Douglas sought Supreme Court review of the 9th District's ruling, and the Justices agreed to hear arguments in the case.

Attorneys for Douglas Wilson urge the Court to overrule the 9th District and hold that the divorce decree in this case meets the statutory requirements of a “final, appealable order.” They assert that the trial court's decree “disposed of the case” because it decided all contested issues and made a division of all marital property between the parties. They argue that the inclusion of a contingent order that a QDRO be issued to divide the Teamsters pension if and when it should become vested does not leave the legal issue of dividing the pension unresolved, but merely specifies that a particular judicial tool be used to accomplish that division if it should be needed.

Attorneys for Jennifer Watson do not contest that the decree of divorce should be held to be a final, appealable order. They do, however, urge the Supreme Court to limit its holding to that issue, and not go beyond it to consider Douglas' additional claim that the trial court erred in awarding Jennifer half of her husband's unvested Teamsters pension.

Contacts
R.J. Helmuth, 330.683.0015, for Douglas Wilson.

James M. Richard, 330.262.0080, for Jennifer Wilson.

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Must Motion for Attorney Fees Be Filed Before Court Rules on Merits of ‘Prevailing Wage’ Case?

International Brotherhood of Electrical Workers, Local Union No. 8 v. Vaughn Industries, Inc., Case no. 2006-1868
6th District Court of Appeals (Wood County)

ISSUE: When the defendant in a civil lawsuit brought under Ohio's “prevailing wage” statute argues that the complaint is unfounded and asserts in its original pleadings a claim for reimbursement of attorney fees, may the defendant wait until the trial court has entered judgment in its favor on the underlying case before filing a formal motion to recover attorney fees?

BACKGROUND: In 2005, the International Brotherhood of Electrical Workers Local No. 8 filed a civil lawsuit against Vaughn Industries of Carey, Ohio, an electrical and mechanical contractor, alleging that Vaughn had violated the state's prevailing wage law by improperly calculating the fringe benefit credit payable to union members who worked for Vaughn on three public works projects at Bowling Green State University. In its answer brief responding to the union's complaint, Vaughn argued that the complaint was not supported by the facts and asserted a right to recover its attorney fees and other costs of defending the case from the union.

Vaughn moved for summary judgment on the underlying complaint, and on Aug. 11, 2006, the trial court journalized an order granting judgment in favor of Vaughn. The order did not address Vaughn's claim asserting entitlement to attorney fees and did not include language specified in Ohio Civil Rule 54(B) indicating that there was “no just cause for delay” in filing an appeal. On Monday, Aug. 14, 2006, the first working day after the summary judgment order was issued, the union filed a notice of appeal in the 6th District Court of Appeals. Vaughn subsequently filed a motion in the trial court seeking a specific award of its attorney fees. The 6th District dismissed the union's appeal of the Aug. 11 trial court order as premature, because that order left Vaughn's attorney fee claim unresolved and did not include the “no just cause for delay” language from Civ.R. 54(B) that must be included to allow the immediate appeal of a partial decision that leaves one or more issues in a case unresolved.

The 6th District certified that its ruling on the appealability of the trial court order was in conflict with a ruling on a similar case by the 9th District. The Supreme Court agreed to review the case to resolve the dispute between appellate districts.

Attorneys for the IBEW point out that Vaughn's summary judgment petition could have but did not did not include a request that the trial court's judgment include an award of attorney fees. They also cite several Ohio court of appeals decisions holding that parties who failed to file a motion for attorney fees prior to the entry of judgment in the underlying case forfeited their right to assert such a claim after judgment has been entered.

Attorneys for Vaughn note that their claim for attorney fees was raised in the original pleadings filed with the trial court, and argue that no order of a trial court can be final and appealable unless it either disposes of all contested issues or includes Civ.R. 54(B) “no just cause for delay” language. They also argue that the cases cited by the union all involved claims brought under state laws that have no specific provision addressing an award of attorney fees. In this case, they say, the prevailing wage statute under which Vaughn was sued includes specific language stating that a prevailing party may advance a claim for attorney fees “in the event that the Court finds that no violation has occurred.” They argue that this language makes it clear that motions seeking attorney fees in prevailing wage cases may be filed after a trial court has entered judgment in the underlying case.

Contacts
Joseph M. D'Angelo, 419.244.8989, for IBEW Local No.8.

David T. Andrews, 330.463.3660, for Vaughn Industries LLC.

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.